The Other Part of the Fifth Amendment

I wrote a breathtakingly brilliant paper on this topic in graduate school for an administrative law class.  Okay, I wrote a paper on this topic…

I wish that I could find that paper as I would just upload it here, but that was prior to my walking towards the Mac light and at least three Windows based laptops have met the blue screen of death since that class, and I don’t have a current device that will read the 3.5” storage disks even if I could find the one containing said paper.  So, this will be much shorter than the 15 or so pages I wrote back then, and it certainly isn’t going to be anywhere near as scholarly.

Disclaimer: Some legal scholar is likely to read this and argue that it is the Fourteenth Amendment that bestows the rights I am going to discuss below. They can get their own blog. I prefer to use the text from the Fifth Amendment as it is more commonly known, and it gives me another opportunity to point out that the Miranda Warning is a complete fabrication of the court. Folks tend to forget that there are other parts of the Fifth Amendment, and yes, I know that Miranda includes portions of other amendments.  I understand the 14th Amendment and the theory of incorporation on the states.

And with that:

A long time ago in a nation seemingly far away, a document was written and ratified by a citizenry establishing a social contract and a system of government.  As part of the ratification process, the citizens insisted that certain additions be made to said document, and those additions became the Bill of Rights.

And then lawyers happened…

The Fifth Amendment contains more than the protections against self-incrimination and double jeopardy and other facets of criminal law that are most closely associated with it. Pay attention to the bolded portions below:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

To shorten this up considerably, the lawyers have successfully established in court that public employees have property and liberty interest in their jobs and that in order to be terminated, or lose pay, or be demoted, etc., they must be afforded due process. The employee has a right to a formal hearing and a chance to answer the accusations against them.

Even in specific instances in which an employee does not have a property interest, such as a probationary employee, a liberty interest still exists. As the saying goes, “You can fire a probationary (or at will) employee for no reason. You just fire them for a bad reason.” Employees with no property interest can’t be terminated/demoted/etc. because they choose to go to or not to go to a particular place of worship (religious freedom) or for their diddling preferences (sexual orientation) or any such similar things. Also, if an employee is accused of dishonesty or other things that would sully their “good name” and likely prevent their ability to gain other employment, they must be given an opportunity to “clear their name”.

So, when you see a news story concerning some allegation against a public employee, and the story contains a passage such as “suspended with pay” that does not mean that is the end of things. It means it is the beginning. As the media and the public often have the attention span of a gnat (I presume gnats have short attention spans. I don’t actually know that this is the case, and it may very well be insulting to gnats to make such a comparison. Gnats likely have a longer attention span than the media and public.) and the follow up story, if there is one, comes well down the road and is buried closer to the back page of the story than to the front.

Those that read such stories and make asinine comments such as “paid leave will teach them” or the like truly are idiots in the purest Greek sense of the word. Bless you hearts.

For those that would like a more technical explanation on liberty interest, click here.

I also suggest web searches on the Garrity Warning. Garrity is a tool that can be used in administrative investigations to compel an employee to make a statement; however, any evidence resulting from the use of Garrity may not be used in a criminal prosecution unless it is independently obtained.

 

 

 

 

 

 

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